DIEHL TAKES FIFTH AT PRETRIAL HEARING

John Witt

Richmond Times-Dispatch

Taking the stand for the first time since he was charged with murder, Michael Diehl pleaded the Fifth Amendment yesterday when asked what he told police about how his 13-year-old adopted son received fatal head injuries.

"Now I know that it would have been better to have kept my mouth shut," Diehl said during a pretrial hearing in Virginia Beach Circuit Court.

Diehl and his wife, Karen, have been charged with murder, abduction, child abuse and malicious wounding in the Oct. 29 death of Dominick Diehl, who was called Andrew. The boy was one of 17 natural or adopted children who lived with the couple in a converted school bus.

Most of the evidence against the couple comes from a series of contradictory statements they made to detectives. It includes several hours of videotape in which they admit shackling the emotionally disturbed boy naked to the floor of the bus and beating him with a stick in an attempt to cure him of disobedience and bed-wetting.

Defense attorney Paul Sutton said yesterday that police used "deceptive and coercive" tactics to elicit information from the couple and their children.

Testimony showed that Diehl was not advised of his constitutional rights to remain silent or have an attorney present until he had been questioned by at least four police officers at three locations over a period of about eight hours.

Almost half of the four-hour videotape was recorded before Diehl was read the warning mandated by the U.S. Supreme Court in the Miranda decision.

Diehl, a 41-year-old former forest ranger from Post Falls, Idaho, said he was too concerned about the condition of his son and the status of his family to fully understand the seriousness of police questions.

"One of the detectives -- I don't remember which one -- said it would be in my best interest to continue to answer," Diehl testified.

Assistant Commonwealth's Attorney Ken Phillips conceded that the police erred in not reading Diehl his rights before the videotape statement began.

"It is the commonwealth's position that the first part of the videotape should not be admissible," Phillips said.

However, the prosecutor argued that anything Diehl said to police voluntarily before the taping and everything he said on tape after being apprised of his rights should be used as evidence against him before a jury.

Judge Alan Rosenblatt said he would watch the entire videotape before hearing further arguments from the attorneys today.

Another judge has already ruled that a similar tape from Mrs. Diehl was admissible, despite her claims that she was too sleepy after 12 hours in custody to know what she was saying. She was read her rights before giving the taped statement, but had asked at one point to continue it the next day.

The Diehls have asked to be tried separately. No trial dates have been set.

Police testified yesterday that the Diehls initially claimed that their adopted son had fallen and struck his head on a plastic crayon box. An autopsy concluded that he died from repeated blows to the head from a blunt object.

Asked on the videotape about the origin of scars circling the boy's wrists and ankles, Diehl freely acknowledged confining his son to the bus for the last two months of his life -- restraining him with a handcuff, a hose clamp and lengths of rope.

The child was beaten when he refused to eat, and was forced to eat his own excrement if he fouled himself during the night, Diehl said.

Diehl said in the tape that he knew such treatment "sounds awful," but insisted that stern discipline was a sign of parental love that made Andrew feel more secure.

"This child did not want us to stop making him follow the rules," Diehl said in the taped statement.